I. Origins of Property/What is Property?A. The Right to Exclude – Bundle of Sticks

(control/use, benefit, transference, destruction, exclusion)-Enables the proprietor to invest in improvements with some certainty of reaping rewards of labor, or to forbear from use with some certainty that any resulting gains in productivity will be hers in the future. (p. 4)-Most important since what’s the point in owning land if everyone else can use it for whatever they want.

1. Jacque v Steenberg, SC of Wis, 563 nw2d 154 (1997)USSC, “...private landowners right to exclude is one of the most essential sticks in the

bundle of rights that are commonly characterized as property.” (p. 7-from Dolan p.1210)

-Another issue: nominal and punitive damages.Barnard Rule (no punitive damages without actual harm). Court found BR should not apply in intentional trespass to land because “actual harm is not in the damage done to the land, which may be minimal, but in the loss of right to exclude.” S paid $100,000! (Example made of Steenberg in order to prevent recurrences)

2. Limitations on the Right to Exclude-Emergency or necessity – person can enter land of another w/out liability for trespass (retrieving child, pet, or other chattel) but can be liable for damage actually done.-Landowner who refuses entry to one in an emergency situation may be liable for damage that ensues.-Also when landowner has wrongfully and forcibly taken someone else’s chattel, but original owner must be in “fresh pursuit.”-Encroachments of one person’s building on another’s land are generally trespass but landowner is not always entitled to remedy, court likes “real injury.”-Other limitations are seen in:

a. State v Shack, SC of NJ, 277 a2d 369 (1971)-1st amendment (right to privacy), 6th(right to counsel), 14th (privileges and immunities clause), 9th (right retained by the people) - Fed law trumps state law but is unnecessary, state will do.-Economic Opportunity Act of 1964 (assistance to migrant workers and families).-Court found Δ invaded no possessory right and therefore are beyond the reach of the trespass statute.think of this in 2010 – homeland security, AZ and illegal immigration, economyb. Intel v Hamidi, SC of Cali, 71 p3d 296 (2003)-Rule – cali – trespass to chattels needs intentional interference w/possession of personal property that was prox. caused.-Normative argument – freedom of speech (based on 2 common laws)- Court was not persuaded to create a rigid property rule of computer server inviolability. No damage of quality or value to server or employees or company, (compared to junk mail) No prox cause of injury.-Dissent – strong, common law does not require physical disruption.did Hamidi have evil intentions? no physical damage to servers but loss of work/time. normative argument – freedom of speech. what if he mailed it? Prof Epstein said the company is a castle and the server is the land. could

employees be chattel? can they just block the emails? *distinguish argument based on 2 common laws

B. Bailment – requires acceptance & knowledge, consent required, (earrings)-created when possession of chattel is transferred from bailor to bailee for a limited purpose. Most are voluntary bc deliberately created by the bailor. -physical custody w/intent to exercise control, not title transfer, express contract not nec., duty

to redeliver, conversion, bailment for hire-involuntary bailment – without consent – finders, towtrucks, police seizure.-gratuitous bailment-bailee has duty to return item to bailor and responsibility for taking care of it.-can sue for bailment or 2a of UCC or both

1. Allen v Hyatt, SC of Tenn, 668 sw2d 286 (1984)-SC and 2 lower courts agree that bailment was created bc ticket needed for exit

(enclosed, indoor, attendant, limited access, security personnel… not an open lot). What’s the point in parking there if there is no extra protection.

-Dissent – no bailment created in “park and lock” situations. Ticket did not id owner. Necessary element of delivery and relinquished control are missing

(basis of bailment theory).pay attention to state v fed law, article 2A, sue for 2A or bailment or both.2. Article 2a of UCC-concept of freedom of contract - parties of a transaction should be able to agree to the

rules applicable to them, and set forth those terms under which they intend to do business. Few provisions.

-obligation of good faith and performance of any lease contract.

II. Adverse PossessionA. Adverse possession - title to property can be acquired by adversely possessing property for

the period specified in the SOL. Doctrine (prescription when property is an easement) reflects “strands.” (continued enjoyment creates entitlement, flawed title may be fixed by continued

use/possession, long term use is evidence of possible lost title, last strand is SOL)- courts will not apply SOL to bar original owner unless requirements are met: a. Actual and exclusive possession-gives notice b. Adverse or hostile possession c. Claim of right (act as owner in good faith or bad-aggressive trespasser) d. Open and notorious (fly your flag) e. Continuous (maintained throughout SOL period) f. For the statutory period (5 – 21 years depending where and what)usually cant AP public

land, and longer periods for wild land-easement by prescription is basically the same but no requirement to be exclusive or in

good faith – O&N, Adverse, continuous- DIETRICH case “Prescription is implied”-easement- right to use, not possess or enjoy-affirmative easement-can use-negative easement- you cant use and neither can the owner-“use of land of specified period of time = AP“-hostility is interpreted as intent, significant improvements not necessary, action to quiet title

-replevin- action to recover chattel itself-cannot AP govt land

1. Ewing v Burnet, SC 36 US 41 (1837)US Symmes Forman – deed from 1798 Williams acquired title in 1798 Ewing Burnet – deed from 1803 (evidence W knew of B but couldn’t afford action;

also that B knew of W after purchase but before receipt of deed)E appealed a jury verdict in favor of BurnetJudge Baldwin says that nothing matters bc Burnet visibly and notoriously acted as the owner for the necessary period of 21 years. You snooze, you lose, Ewing. SOL.2. Nome 2000 v Fagerstrom, SC of Alaska, 799 p.2d 304 (1990)Nome claims land, Fag claims AP. Ruling for Fag, nome appeals.Rule- continuous, open and notorious, and exclusive and hostile. –established.SC – affirmed in part, reversed in part, and remanded. Nome claims at best easement by prescription. Court agrees. New trial will determine extent of Fag’s acquisition.

B. Prescription(See end of AP)

1. Dieterich Truck Sales v JS & J (Terminal Station), Cali CA, 5 Cal. Rptr 2d 388 (1992)TC held that D had an easement against TS and landlord Brown. Both appealed. Injury to inheritance is a waste. Prescriptive period cannot commence until future

estate is vested. (means when leases ends and landlord regained right to possession of the leased property)

SC rules that no prescriptive easement could come against Brown bc he had no present possessory interest so he couldn’t legally bring action to prevent E by P of π and therefore judgment against him must be reversed. Affirmed against TSFI and the law of waste – AP or EP acquires no more than the estate held by the personentitled to possession at the time the AP took possession of or started using the property (EP) –from N & Q

C. Adverse Possession of Chattels1. Guggenheim v Lubell, CA of NY, 567 nys2d 623 (1991)-Painting valued at $200k stolen by mailroom employee. Lubell bought at a legit gallery.Gugg wants replevin (claim and delivery). Δ claims SOL which is 3 years but NY law is favorable to original owner even if legally bought. SOL starts at possessor’s refusal to

return the chattel. If thief is possessor SOL starts at time of theft. -CA decided that burden of proving painting not stolen lies with appellant Lubell and

affirms appellate divisions holding. III. Property Rights in Human Tissue

A. Moore v Regents of UC, SC of Cali, 793 p.2d 479 (1990)-guys tissue is especially good for some research his doc is doing, so the doc takes advantage in using it. Guy finds out and claims breach of doc’s disclosure obligations and conversion.No conversion without original owner’s interest; disposal of body waste is public health policy.-SC says no conversion but breach of fiduciary duty and lack of informed consent by doc.No rule on who owns tissue yet bc court says it should be left up to legislature.-Dissent – patient should be able to choose his cells fate before surgery; conversion in common law protects patients right; majority opinion that medical market for tissue is compromised fails bc patient loses right to control and bars π from obtaining benefit of cells that were improperly acquired anyway-Dissent 2- not giving patient the rights messes with the bundle of sticksB. Inquirer article

-lady’s tissue is now gone. No regulations yet. Big issue. Public policy – health and safety.C. Henrietta Lacks

IV. Estates in Land and Future Interests (FI) – FI is a present, legally protected right in property - Fee simple estate – ultimate ownership – grants the right to possession into the future, forever. Following cannot exist unless specifically created by owner of fee simple. - Fee tail estate – inheritable only by lineal descendants of the person to whom its granted. If LD die out, estate expires and passes to owner of next estate, usually fee simple owner. Ltd inheritability. (Used by English aristocrats, not really in USA, to keep property in fam. Trusts are primary vehicle.) - Life estate – For life. Expires at death, not inheritable. (to wife/parents, used in estate planning) - Term of Years – lease. Expires at specified date, can be long term. (to get income $ -rent) month

to month requires 60 days notice - Term of Tenancy - possession - LE pur autre vie- to A for the life of B -LE determinable- to A for life, or until she remarriesWords of Purchase – ID the grantee - “to Gerry for life” – gives life estate - “to Gerry and the heirs of his body” – fee tail - “to Gerry and his heirs” – estate of general inheritance, G can leave to them or not bc fee simple. Heirs have nothing. - “its successors and assigns” – conveys fee simple to non-human entity - “to heirs, for life” – word of purchase Words of Limitation (L is used in place of the word estate) ID particular estate granted - “heirs” usually word of limitation but can be word of purchase When transfer is made to heirs of deceased, heirs both ID’s takers and indicates fee simple (P&L) -“to Gerry for life, and at his death, to his heirs” – Gerry gets for life, heirs get fee simple at his death Who are the heirs? - people who take the probate estate (what you own at death) of a person who dies intestate (without a valid will). Surviving spouse, decendent’s issue (lineal decendents of all degrees), ascendants, and collaterals (other blood relatives) No heirs? Escheat (state cheats you out of your stuff when you die with no heirs) - fee simple doesn’t end, property goes to state where land is located (personal property too)

A. The Defeasible Fee Simple (null and void *defeat the contract*) *p.343* “Controlling Land Use and Behavior by Threat of Forfeiture” -Landowners attach conditions to the grants of fee simple estates to coerce behavior or deal with changed situations. If the condition happens the fee simple granted on the condition is subject to being defeated by the occurrence, known as a defeasible fee. *A fee simple estate not subject to a condition is a fee simple absolute -3 categories of defeasible fees a. Fee simple determinable FSD– grantee holds the FS “until” a condition happens, when

the grantee’s estate terminates and the FS automatically terminates -returns to the grantor.

Until a condition happens, the grantor’s interest is called a possibility of reverter.

*”so long as” or “until” “while”, “during”* b. Fee simple on condition subsequent FSCS – grantee holds the FS estate, “but if” a

condition happens, the grantor has the right to reenter the land and take back the FS estate. Until the grantor takes back the FS, the grantor’s interest is called a right of entry or power of termination or right of reentry. – MUST BE EXPRESS

*”but if”, provided (that), upon condition that, if it happens that* **Difference btwn FSD and FSCS - FSD terminates automatically and FSCS needs the grantor to reenter & take possession or give notice to grantee & sue for possession** ESTATE OF GRANTEE CONTINUES UNTIL GRANTOR EXERCISES POWER OF TERMINATION

c. Fee simple on executory limitation FSEL– grantee holds FS estate, but if a condition happens, the FS automatically vests in a named 3rd party. Until the condition happens, the 3rd party interest is called an executory interest or executory limitation.ONLY PLACE FOR 3RD PARTIES AND SUBJECT TO RAPCONDITION CAN ONLY OCCUR AFTER HE TAKES THE LAND1. Station v Dare County Δ, SC of NC, 513 se2d 789 (1999) Lifeguard station case. TC gives to Dare county, CA reverses, SC reverses again. US claims FSA, Etheridge claims FSD. Court looks at the language of the deed. It was not specific enough; you need unambiguous and express language. Sorry Etheridge. This case shows that in order not to have you FS overturned you need “language that shows clear intent.”2. Red Hill Outing Club v Hammond Δ, SC of NH, 722 a2d 501 (1998) Ski slope case. TC found the club’s compliance with the express language of the deed would satisfy the terms of the condition. FSCS fails.Restraints on Alienation (Conveyance or Transfer to Another)& Unenforceable

Conditions 1. Restraints Must Have A Legitimate Purpose - City of Palm Springs

a. Examples of legitimate purpose (i) right of first refusal [if exercised w/i a ltd. time or could be RAP

problem] (ii) for charitable purpose or public benefit

b. Palm Springs v Living Desert Reserve, CA of Cali, 82 Cal Rptr 2d 859 (1999) Rich ppl gave land to city for a desert reserve & equestrian center. City thought that the land would be better for a golf course and offered $200k for the land and a reserve in another location. They threatened ED if refused. TC sided w/city and granted order but Desert claimed breach of FSCS. CA held that TC’s holding that violation was not reasonably imminent and Desert’s power was not compensable must be reversed. No retrial bc the violation is both undisputed and indisputable.

B. Life Estates and Remainders: Providing for the Family (FI) O to A for life and then to ____. Life estate -usually created to provide someone with income/place to live/both during

their lifetime and upon death property goes to persons selected by the grantor.1. Nelson v Parker, SC of Indy, 687 ne2d 187 (1997) NEW RULE! Issue is whether a deed “subject to a life estate” in a 3rd person validly creates that life estate. SC holds that it does create the LE and overrule an earlier authority to the contrary. old law says no “strangers” (3rd persons) allowed.

“reservation” in a deed is a clause. deed had clear language. too bad nelson.2. Kinert v PA Dept. of Revenue, Commonwealth Ct. of PA, 693 a2d 643 (1996) Did she give a life estate to 2 foster sons or bequeath a license? deed says til their death or both left property for 60 days. Then sell et and give $ to church. Orphans Ct. said license, CC reverses to life estate bc they had to pay taxes. Dissent – license to occupy bc they cant rent the property out.3. Estate of Jackson, SC of SD, 508 nw2d 374, (1993) Involuntary or permissive waste case. failure to make repairs. Hail damaged a house that was given to Miller and Brosnan at the death of Mrs

Jackson. M&B split the ins. $ and sold the house to another Jackson. But now lawyer says that cash belongs to estate and circuit court agrees. Brosnan appeals for $ for repairs from the hail damage. SC reversed bc Mrs Jackson had obligation to make repairs as per life estate bc she

was alive during damage occurrence and now her estate does.4. Hausmann v Hausmann, AC of Ill, 596 ne2d 216, (1992) Involuntary or permissive waste case – not paying your taxes is a waste. AC held that waste does not have to be physical damage.Alienability of LE

LE is fully alienable unless subject to a valid restraint, but life tenant cannot convey more than they have: an estate that ends when THEY die.barbri says inalienable bc few would be willing to pay full value for an estate of

uncertain duration

Remainders, Reversions and Executory Interests pp. 361-365 book 345 I.Remainders and Reversions Follow Property Interests Which Are Not FSA

a) They typically follow Life Estates (LE) nelson v parkerII.Types of Remainders-must be expressly created in the instrument creating the intermediate estate-Always follow life estates, can never follow a fee simple-to A for life, then to B and his heirs – title “remains away “ from O instead of

reverting back to him(a)Indefeasibly Vested

1) created and held only by an ascertained person(s) in being2) must be certain to become possessory on termination of

prior estates (no condition to prevent remainder from becoming a present interest)

3) must not be subject to being defeated or divested4) must not be subject to being diminished in size-to A for life, and on A’s death to B – B has IVR, if B dies 1st their

remainder passes by will or intestacy to successors who own IVR

-to A for life, then to A’s 1st born son – contingent remainder for son, reversion in fee simple for O, remainder is not vested bc

son doesn’t exist, & is subject to the condition that A has a kid

(b)Vested subject to Complete Divestment VSCD1) remainderer right to possession and enjoyment is subject tosome condition subsequent

-to A for life, remainder to B and heirs, but if at B’s death he is not survived by issue, to C and his heirs – B has VRFS,

but FS is subject to divestment if not survived. C has shifting executory interest

-to A for life, then to B for life – B has VRLE subject to total divestment - VRSCD, O has reversion in fee, B’s

remainder LE is not IV, not contingent, defeated if he dies in A’s lifetime

-to A for life, and on A’s death to B, but if B kicks 1st, to C – LE, VRSCD, C has shifting executory interest. even though

B’s taking is contingent, it is a Condition subsequent, meaning B’s remainder is VSCD

(c)Contingent-to A for life, & on A’s death to B if B survives A

A=LE, B=CR, O=Reversion1) subject to condition precedent (contingent as to event)2) unborn or unascertained persons-pretty much the same as VSCD, but it is form, not substance

that counts. (if its implied its VSCD, if its express its contingent)

(alternative contingent remainders)(d)Vested Remainders Subject to Partial Divestment (Open) VRSPD

1) created in a class of persons (children, siblings) that is certain to take at the end of previous estates, but is subject to

diminution by reason of other persons becoming entitled to share in the remainder

- to A for life, then to her children in equal shares – if no children, then just LE and CR in unborn kids of A, O has

reversion---if kid is born he has vested remainder subject to open if A has

more kids – then those kids have TIC SPD

III.Types of Reversions-You cannot convey a greater interest than you have-reversions are vested, not contingent, because events are certain even if

determinable or defeasible-Express language not necessary-not subject to RAP-transferable, devisable by will, descendible by inheritance. -once a reversion, always a reversionO to A for life – O has reversion

(a)Indefeasibly Vested(b)Vested Subject to Complete Divestment

IV.Executory Interest(EI) Is A Future Interest That Cuts Short or Divests A Prior Estate – only 2 FI’s that can be created in a transferee – remainders and EI If it is not a remainder bc preceding estate is not LE, then it must be EI. No

remainder characteristics

a)Shifting executory interests (ShEI) – cuts short a prior estate created by the same conveyance

-to A and heirs, but if B comes back from Canada, to B and heirs – A has FSSEI, B does not have a remainder, bc it does not follow the

natural termination of the estate – it divests in FS and title will SHIFT to B

b)Springing executory interests(SpEI) – follows a gap or divests the estate of the transferor.

- to A when and if A marries B – A has FSSEI in O, SpEI in A. A’s interest is not a remainder bc if A’s FI bc present (if A marries B), it will

divest O’s FS. bc it divests the estat of a transferor it is a SpEI- to A for life, and one year after A’s death to B – B cant have remainder

bc of the 1 year gap, SpEI bc it springs out of the transferors reversion

V. Transferability of Remainders and EI1) VR are transferable, devisable and descendible2) CR and EI are transferable inter vivos3) CR and EI are usually devisable and descendible3) any transferable FI is reachable by creditors5) not transferable in unborn/ua persons bc courts will not appoint a guardian

for conveying landC. Rules Against Perpetuities p.373 ADD ANDERSON P 380 & LUCAS PRINTOUT (FI)

I.What RAP Doesa) It voids some Future Interests UNLESS they vest or fail to vest w/i the life

time of someone who is alive at the time the interest is created OR no later than 21 years after that life in being. no matter how remote the chance is.

[note! Corporations are not lives in being]b) It Allows a Grantor to Control Property for One generation Beyond Those

persons alive and known to the grantorc) begins at the time the interests are createdd) wait and see rule– wait til end of RAP period, and if it vest its good, if not void

II. Transactions Typically Subject to RAPa)Contingent Remainders(CR)b)Vested Remainders Subject to Openc)Executory Interests(EI)d)Options to Purchase A propertye)Rights of First Refusal

III. Transactions Not Subject to RAPa)Charitable trusts or successive charitable giftsb)State & local governmentsc)Vested remaindersd)Vested remainders subject to defeasancee)Reversionsf)Possibility of reverter – SOL runs outg)Rights of reentry – not automatic

1.CREATE,CAREFULLY, A HYPOTHETICAL PERSON(S) IN WHOM THE INTEREST CAN VEST OR WHO CAN HAVE AN OFFSPRING IN

WHOM IT CAN VEST2. CRUELY KILL ALL THE MEASURING LIVES SO WE CAN START TO COUNT THE STATUTORY PERIOD3. COUNT THE 21 YEARS, IF THE CREATED ONE’S INTEREST WOULD

VEST AFTER THE 21 YEARS WE HAVE A RAP VIOLATION

V. Landlord-Tenant Relationship A. LT Relationship

a. Leasehold Estates1. estate for years – tenancy measured by a fixed duration. Usually leases must be in writing if over 1 year. month to month require 60 days notice. terminates automatically @ end of

period, or with breach or surrender Created by express agreement or implication – month to month 2. periodic tenancy – tenant holds for the initial period and successive periods until L or T

terminates by appropriate notice. ie month to month^, week to week, etc. Key feature of PT is they are continuous and will rollover to next period automatically. Notice must be given to terminate – year leases are usually 6 months and shorter leases are equal to the period of the lease- notice is always uncertain and required

3. Tenancy/Estate at will – either L or T can terminate the lease at any time under common law but now its usually equal to the period btwn rent payments – can shift to periodic

4. estate at sufferance – not really an estate but a way to describe the wrongful possession of land by a tenant who improperly hold over at the end of a lease. Landlord can either evict tenant as a trespasser or claim rent as a new tenant.

5. 2 ways to breach lease – constructively or physically b. Themes in current LT law

1. Conveyance or contract? conveyance – a document, such as a deed or will that transfers property from one party to another contract – a legally binding agreement between two parties Traditionally courts saw leases as a conveyance, now they say contract. Some say both.2. Statutes – there has been an increasing amount of legislation governing the law of LT.3. Residential/commercial dichotomy – courts and legislatures distinguish between residential and commercial leases. This reflects the (not always accurate) assumption that L has greater economic power and skill than the residential T.4. Trumping the bargaining process – the court has to choose between enforcing a lease

agreement as written or altering or voiding its terms as a matter of fairness.5. Drafting and Counseling – consider who should bear the burden of negotiation and drafting. -don’t forget about the widespread use of standardized forms.B. Landlords Obligations and Tenants Rights (Remedies) not implied! RULES?

-covenant- covenant for title – assurances- duty -in addition to 1-3, seisin – assurance grantor has the estate or interest they convey-right to convey- they have the power and authority to grant the title/deed-no encumbrances- visible (easements), invisible (mortgages)-quitclaim deed- release of w/e interest, the grantor has in the property

-landlord is liable for safety – duty to disclose/ repair1. Duty to Deliver Possession – duty – deliver, right - repair

a. Teitelbaum v Direct Realty, SC of NY, 172 Misc. 48, (1939) People who leased a store wouldn’t leave when new tenant was due to come

in claiming that they had an oral agreement. Judgment for Δ who wouldn’t leave (USA)

American v English rule SC holds the American rule but now we tend towards the English rule that it is the L’s duty to ensure new T can take physical possession at the start of the lease term.

2. Duty to Protect the tenant’s right to quiet enjoyment: Constructive Evictionterminate lease, damages, injury must be by L, must be uninhabitable,

must vacate w/in reasonable timea. Blackett v Olanoff, SJC of Mass, 371 Mass 714 (1977) Residents complain that the noisy bar next door under same L caused

constructive eviction of each tenant. L promised to fix, was unsuccessful and court ruled for residents. L appealed and said he was not responsible for noise of patrons, proprietors, employees, etc. but lease for lounge said that entertainment had to be conducted as to not disturb residents so L could control. Affirmed.

b. Wesson v Leone, SJC of Mass, 437 Mass 708 (2002) Leaky ceiling of commercial building caused tenant to peace out when L

didn’t fix it properly. L claims breach of contract and T CC’s for constructive eviction and deceptive biz practices.

SJC says L breached covenant to maintain and T was entitled to terminate the lease and recover relocation costs.

3. Condition of the Premises: the Warranty of Habitability housing code exists?, T can terminate lease, make repairs & offset cost,

abate rent, seek damagesa. Javins v First Realty, USCA-DC, 428 f2d 1071 (1970) Some dump in DC has 1500 housing code violations; do theT’s have to

pay rent? Even urban buildings need to be kept up, urban tenants have no interest in

the land itself, present times do not allow for self repair as ppl could do back in the day (plumbing etc is too complicated and apt dwellers often have no access to electric boxes and such.) remanded for new trial bc tenants have to pay SOME rent but not sure how much.

C. Tenant Duties and Landlord Remedies1. Tenant Duties

duty to repair, use legally, pay rentremedy to evict/sue for rent, if T abandons L can ignore or repossess.

a. Duty to Preserve the Premises WASTE1.Sigsbee Holding v Canavan, Civil Court of NYC (Bronx), 39 misc 2d 465 (1963) T put in new cabinets, L claims waste. Court says it enhanced the value and to STFU

b. Duty to Operate1. Piggly Wiggly v Heard, SC of GA, 261 ga 503 (1991)

Tenant PW left location for a new one, kept paying rent and refused to sublet. L claimed covenant of continuous operation.

Court says that wasn’t in the contract and rules for PW Dissent says there was continuous operation language

c. Waste (also LD and TR)duty to repairVoluntary – intentional acts of tenant that cause substantial change to the value or character of property. – supposed to return in same conditionInvoluntary/Permissive – failure to make repairs to or protect land or pay

normal bills ie taxesameliorative waste- when a change to property increases the value

VI. Concurrent Ownership/Concurrent Estates and Marital PropertyA. An Overview of the Concurrent Estates: Alienability (capability of sale or transfer)

Incidents of Co ownership – possession, rent and profit, cant encumber another co-T’s interest, ouster- wrongfully excludes other, remedy of partition PIK and PIS

4 ways to divide property ownershipa. Joint Tenancy JT/Tenancy in Common TIC – fully alienable. residual form of ownership, used

when no other ownership is specified. TIC can transfer their interests independently of one another during life, and their interests pass by their wills or by intestate succession, at death.

anyone can own property in this way whenever possession is owned by more than 1 person, owners are TIC unless they have

acquired title in some other form. TIC are widespread and arise when property passes by intestate succession, when couples

divorce w/out a property settlement dividing their jointly owned property and whenever ppl buy prop together w/out going to the expense of creating a corp, partnership or trust to hold title. ex. investment properties of biz or friends, unmarried couples purchasing.

Possibility of conflict is great bc of the many decisions that come with owning property. Agreement is needed to avoid being left to default rules but many cant afford it or don’t know to.

no Right of survivorship, each T entitled to possession of whole estateb. Joint Tenancy with the Right of Survivorship JTRS – fully alienable inter vivos (living trust) but

inalienable at death. Instead of passing to heirs the property “remains” with the survivor. Each tenant is regarded as owning the whole rather than a fraction. When a JT dies, the other tenant has no burden w/decendents and taxes and such. JT’s can transfer their interests independently during life, but then they convert their interest into a TIC, destroying the survivorship right. JT property cannot be transferred by will and does not pass by intestate succession.

c. Tenancy by the Entirety TBE until recently, these were only for married couples andd. Community Property may still be the case in most states. TBE – is like the JT in that there is a right of survivorship, but it is unlike TIC and JT in that the

cotenants cannot transfer their interests independently. w/out a divorce, TBE’s cannot sell their individual interests in the property or to dispose of them by will w/out joinder of

both spouses. terminates by death, divorce, mutual agreement, or JOINT creditor Community Property – Like TBE, is open only to married couples except in hippie cali. Can

only be transferred inter vivos if both spouses join in the conveyance. unlike TBE and JT, CP can be disposed of by will.

Examples on p 555

B. Problems with Sharing Possessioncontribution/compensation may be compelled for repairsno contribution or set off for improvementscontribution can be compelled for taxes & mortgagescant really AP cotenants

Default rules governing shared possession are murky and defective Cotenants own “undivided” shares of land, not a specific portion, and none has a right to

exclude the others. Management problems are likely to arise bc no one is legally in charge, and a cotenant who assumes the responsibility of managing the prop is not entitled to compensation. Each cotenant is entitled to possession of the entire property and responsible for their share of necessary maintenance expenses but there is no mechanism for collective decision making. Law offers almost no help and if they cant agree on management or disposition of marital property, the court will divide it for them on divorce. They can sell their individual shares, but they all have to agree to sell the whole thing. Court will either physically divide the property among them or order the property sold and divide the proceeds in an action of partition. Short of partition, court only helps by an action for contribution for advances made to pay another cotenants share of taxes, mortgage, or maintenance. any cotenant can make improvements to the property and others are not required to contribute. An action for waste may be available for damage done by one cotenant, but exploitation of natural resources ordinarily gives rise to an action for accounting for profits rather than an action for waste. Most difficult problems in TIC/JT come from whether a cotenant who uses or occupies the property has to account to the others for the value of their use or occupation. Majority rule is that they do not, unless they “oust” the other cotenants.

1. Martin v Martin, CA of KY, 878 sw2d 30 (1994) TIC case where parents own 7/8 and kid owns 1/8. Kid wants a cut of the profit from

the mobile home park. Parents want rent from the kid. Parents claim they’re ousted because he’s there, and therefore owes rent. But its just one of the 4 lots so they are not actually ousted.

Was originally ordered to pay but CA reluctantly reverses bc it was not an ousting. Decision follows the statute originated in England that authorizes actions of account

by any cotenant against another cotenant “for receiving more than comes to his just share or proportion.”

Partition – usual rule is that cotenant is entitled either to the part of the property that has been improved or to the increase in the value of the

property due to the improvement.Partition in kind – divide the land and keep it that way

2. Yakavonis v Tilton Δ, CA of Wash, 968 p2d 908 (1998) Couple in 9 yr relationship are fighting over parcel a and b in partition. Tilton owned

first and quitclaimed half of a house to yaka. Kicks out yaka when they split but yaka wants their share of rent income. House gets sold from tilton in an ousting. Holding that yaka was ousted in 94 when he left and not in 97 when the house was sold. Correct amount awarded to yaka should have been half the diff of the rental value of $945 a month and the maintenance fees of $678.08 for $133.46 per month since 1/1/97.

Quitclaim – no warranty as to how good the title is. Could be a lien on the title. Quick fix – must be written

3. Delfino v Vealencis Δ, SC of CT, 436 a2d 27 (1980) TIC where delfino wanted to build rental property but V argued partition in kind.

And if that doesn’t work, then they’ll do partition in sale. With PIK there are 4 concerns of the court – p. 566.

1- difficulty of the approval of the zoning board2- possibility of not selling or selling undervalue bc of Δ’s business 3- if Δ were granted the 1 acre parcel, where her residence and biz are, 3 of the

lots proposed in the π’s plan to subdivide the prop would have to be consolidated and would be lost.

4- the proposed extension of one of the neighboring roads would have to be rerouted through one of the proposed building lots if a partition in kind

were ordered. Court held that property can be practically physically divided, and interests of all

owners are better served with a PIK so the Δ is entitled to their PIKC. JTRS: Creation and Severance JT is popular today bc it provides a cheap and accessible will substitute: it passes property to

the surviving JT with the expense or hassle of probate proceedings and usually free of any debt of the dead JT.

Drawbacks – some crap about giftsexpress language requiredterminated by suit for partition-severanceinter vivos conveyance by 1 JT gives the other TIC (voluntary&involuntary conveyances)

The ability to destroy a JT (resulting in conversion of the relationship to a TIC) arises from the “4 unities” – requirements for creating and maintaining a JT – from 14th century

PITT- 4 unities that must happen at the same time p. 569 a. Time – the interests of the JT’s must vest at the same time b. Title – the JT’s must acquire their interests by the same instrument c. Interest – the JT’s must have estates of the same type and duration d. Possession–JT’s must have undivided interests in the whole, identical rights to

enjoyment1. Downing v Downing, CA of MD, 606 a2d 208 (1992) lady conveys property to straw man hoff who immediately reconveyed to her son

John Downing π. random guy Myers was allowed to farm the land, but this does not conclude a TIC. Evil daughter. issue: is there a RS?

Note 1-Mrs d used the straw man to satisfy the 4 unities. Holding - A mortgage executed by all joint tenants does not sever

the joint tenancy.

2. People v Nogarr, Cali CA, 330 p2d 858 (1958) Husband and wife have JT. Before he died but after they separated he executed a

mortgage to the parents without his wife’s consent. He dies and then wife finds out. Dispute whether or not a creditor can collect on the wife who had the JTRS. She defends that after he dies, it automatically goes to her. lien. Court says she’s right, at the time of his death they had a JT in FS and at the time of

the execution of the mortgage, all 4 unities existed so she became the sole owner. original ruling that parents get $ is reversed.

Lien is an interest in property to ensure a debt will be paid. (didn’t pay off your car yet? Note on back of title at bank that bank or whoever owns it) this

is a consensual lien. ex. Mortgage lien, purchase money security interest PMSI (loan for car, dealer gets $, bank gets security interest to ensure repossession if necessary)

Statutory lien – taxes, mechanics, Judgment lien – a sues b, b doesn’t pay, a gets a judgment leanDiff btwn lien and conveyance – prop can be taken faster w lien

3. Smolen v Smolen, SC of NV, 956 p2d 128 (1998) Guy gets a brain tumor and is gonna die so lawyer recommends divorce in order to

protect assets. they put the house in a JTRS. but then wife puts husband in a home and he gets pissed and calls his lawyer nephew to revoke wifes guardianship and made a trust for nephew and deeded his portion of the house to him. wife brings action and court gives her sole ownership. nephew appeals.

Court says that common law allows him to sever the JT, so cancelling the deed of transfer contradicts the common law rule that transfer is valid. reversed and

remanded.D. Marital Property States are either common law – regard each person’s property as their own, regardless of

marital status; or community property states – which regard the earnings of married people as belonging to the “community” that is the married couple.

1. Rights of one spouse’s creditors to reach marital propertya. Sawada v Endo, SC of HI, 561 p2d 1291 (1977) Affirmed. The TBE is not subject to the claims of his or her creditors. The

conveyance was not fraudulent and cannot be set aside. The interest of a husband or a wife in an estate by the entireties is not

subject to the claims of his or her individual creditors during the joint lives of the spouses.

Creditors are not entitled to special consideration, if the debt arose after the creation of the tenancy by the entireties, the creditor presumably

had notice of the characteristics of the estate The public policy interest furthered is one of family solidarity and allowing for convenient administration of the decedent’s estate without worrying about

decedent’s debts. Dissent. The dissent focused on an interpretation of the Married Women’s

Act meant to equalize the positions of husband and wife and therefore, each may subject their rights to levy or creditors.

b. US v Craft.

6321 IRC 26 USC 6321o If any person liable to pay any tax neglects or refuses to pay, the amount shall be a lien

in favor of the US upon all property and rights to property, real or personal, belonging to such person.

Michigan law exempts property held in a TE from seizure by creditors for the debts of only one spouse so the majority concluded that this property was exempt from the federal tax lien for the separate tax debt of one spouse. Marital Unit – state legal fiction that they are a single entity and neither has separate interest in the property. Both Fiction. Lien can Attach to property or rights to property

State law fictions may keep state law creditors away but they have no bearing on an IRS lien. State law governs the issue of whether any property interests exist in the first place.

BUT Congress meant to reach every interest in property that a taxpayer may have. Allowing Craft to escape her husbands debt would “provide an avenue for easy avoidance of

federal income tax laws” Also, it is not fair to the other taxpayers who play by the rules.o So in light of the state law, TE needs a rule to prevent thiso Tax lien would not follow the spouse unless it was fraudulent. Since the quitclaim took

place after the debt was made known to Mr Craft, it would seem as though they were trying to escape their debt intentionally by using a state loophole. This can constitute fraud. Under state law, when the property is exempt to creditors a conveyance cannot be fraudulent. This is inapplicable when the debtor places non exempt funds beyond the reach of his creditors by using them to enhance exempt property.

Its basically a joint tenancy anyway as seen in precedent cases.

Under USC 6321 Craft should be liable for the debt. Congress meant to reach every interest in property that a taxpayer may have and a lien can attach to property or rights to property. Even though there are the state law fictions such as the single entity Marital Unit, and exemption from creditors of the debts of only one spouse under a Tenancy by the Entirety, they have no bearing on an IRS lien.

Under state law a tax lien would not follow the spouse unless it was fraudulent. But Since the quitclaim took place after the debt was made known to Mr Craft, it would seem as though they were trying to escape their debt intentionally by using a state loophole. This can be seen as fraudulent. However, under state law, when the property is exempt to creditors a conveyance cannot be fraudulent. But This is inapplicable when the debtor places non exempt funds beyond the reach of his creditors by using them to enhance exempt property. Also, it is not fair to the other taxpayers who play by the rules. So in light of the state law, Tenancy by the Entirety needs a rule to prevent this. It’s basically a joint tenancy anyway as seen in precedent cases.

VII. Land Use Regulation and it Constitutional LimitsZoning – states may enact statutes to reasonably control the use of land for the protection of health, safety, morals, and welfare of its citizens.

zoning power: is based on states police power and limited by Due Process Clause and Equal Protection Clause of the 14th Amendment.

5th Amendment – “no taking without just compensation” ~5th applies to states by the 14th amendment. What is the function of a court in deciding whether a particular act of government impacts so heavily on private property rights that it should not be allowed without the government’s compensating for the harm suffered?~

-Unconstitutionality – if it reduces the value of property it is a taking under 5th & 14th

takings must be compensated by the govt via damages to the landowner equal to the value reduction

-if ordinance regulates a NUISANCE its not a taking, even if land has 0 economic value-constitutional tests

-essential nexus- rationally connected-rough proportionality- reasonably related in nature (EN), and extent (amt of

exaction)-burden of proof- govt has burden of proving EN and RP tests are met

REMEDY- if court determines a taking, the govt must either compensate, or terminate the regulation and pay the owner for damages incurred while regulation was

active.

A. Pennsylvania Coal v Mahon π, SC of US, 260 US 393 (1922) Taking case to prevent PC from mining under their property. 1878 deed conveys the surface but reserves the right to remove all the coal under the same, and grantee takes the

premises with risk and waives all claim for damages that may arise from the mining. but π says that whatever may have been PC’s rights were taken away by the Kohler Act of PA. SC reversed original holding that statute was unconstitutional and held the statute was a legit exercise of police power and directed a decree for the π. Statute forbids mining in such a way as to cause the subsidence (collapse) of any structure used as human habitation. Question is whether police power can be stretched so far.

Court says the act cannot be sustained as an exercise of police power where the right to mine has been reserved. To just let the coal sit there is the same as destroying it.

The rights of the public should not be compromised just bc the owner was shortsighted enough to only acquire surface rights without the right of support. General rule is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. This is a question of degree, and the court assumes that the statute was passed bc an exigency exists that would warrant it and that an exigency exists that would warrant the exercise of eminent domain. but who should bear the loss of changes desired… the court cannot see the fact that private persons or communities who have taken the risk of acquiring only surface rights should get greater rights than they bought just bc their risk has now become a danger.

Decree reversed. Dissent – coal in place is land. The restriction here in question is merely the prohibition of a noxious use. the restriction of the use of the property cannot be lawfully imposed,

unless it is to protect the public. The rights of an owner as against the public are not increased by dividing the interests in their property into surface and subsoil. The sum of the rights in part cannot be greater than the rights in the whole. The value of the coal kept in place by the restriction may be negligible as compared with the value of the whole property or even as compared with that part of it which is represented by the coal remaining in place and which may be extracted despite the statute.

B. Miller v Schoene, SC of US, 276 US 272 (1928) Cedar tree kills apples case. π in error got $100 to cover the expense of removing the trees and get to keep the trees as fire wood or whatever. what is greater value to the

public? Court says not unreasonable and no denial of due process. Affirmed again.C. Village of Euclid v Ambler Realty Co (appellee) , SC of US, 272 US 365 (1926)

Zoning ordinance case. Court below found the ordinance to be unconstitutional and void and enjoined its enforcement. ordinance diminished the property value. Is the ordinance invalid in that it violates the constitutional protection “to the right of

property in the appellees by attempted regulations under the guise of police power, which are unreasonable and confiscatory?”

Court says that where the equitable remedy of injunction is sought, upon the broad ground that the mere existence and threatened enforcement of the ordinance, by materially

and adversely affecting values and curtailing the opportunities of the market, constitute a present and irreparable injury, the court will not scrutinize its provisions, sentence

by sentence, to ascertain by a process of piecemeal dissection whether there may be, here and there, provisions of a minor character, which if attacked separately, might not withstand the test of constitutionality. Decree reversed. NFW!

No dissent but trial court said that the true object of the ordinance is to put the property in a straightjacket. The reason that some people live in apts and some in mansions is strictly economic. The assertion that the ordinance will prevent congestion and promote

health and safety would be more solid if the N/S and E/W streets were adequate. they say no ordinance without compensation under the guise of exercising police power.

Difference btwn zoning and nuisance law is that nuisance deals with a negative situation and who can enforce them.D. Dolan v City of Tigard, SC of US, 512 US 374 (1994) Previous court said that the city could base approval of a building permit on the dedication of a portion of the property for flood control and traffic improvements. Dolan says the city has forced her to choose btwn the building permit and her right under the 5th

amendment to just compensation for the public easements. Dolan would lose right to exclude, court doesn’t see how rec area would relate to the city’s legit interest of reducing floodplain problems. As far as the bike path, the city only

said that it “could” not “would” reduce traffic. Nexus and reasonable relationship. Reversed.

Dissent 1 – 3 Justices – city just wants 2 conditions, each of which will mitigate the adverse effects of Dolan’s proposed development; but the issue is whether the city violated

the 14th amendment. City cannot attach arbitrary conditions into a building permit, but this is a new issue. The court ignored what Dolan would gain from the situation: widening the channel and reinforcing slopes to decrease risk of flooding and benefitting waterfront owners, the zoning is actually biz regulations that would maximize Dolan’s use, and the rec area would consist of potential customers (so who cares about the right to exclude, its only one stick in the bundle), and the “could” v “would” is just a play on words (who cares if there is no exact percentage predicted for reduction in traffic. 50% or 5% its still better than nothing). Dissenters do not think the court should micro manage this kind of thing or they will see a whole new class of litigants in the SC of US

Dissent 2 – “could” v “would” issue brought up again. Court put burden of producing evidence of relationship on the city, despite the usual rule in cases involving police

power the govt is presumed to have acted constitutionally. The building plan would increase traffic and the bike path would help deter that. The zoning is constitutional bc the proposed property would otherwise be the cause of the congestion that the zoning is supposed to reduce.